Citation Nr: 1015498
Decision Date: 04/28/10 Archive Date: 05/06/10
DOCKET NO. 08-30 994 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUES
1. Entitlement to service connection for a right knee
disability.
2. Entitlement to service connection for a cardiovascular
disorder.
3. Entitlement to an evaluation in excess of 30 percent for
a dysthymic disorder.
REPRESENTATION
Veteran represented by: Wisconsin Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
M. Donohue, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army
from January 1973 to December 1975 and in the National Guard
with various periods of active duty for training (ACDUTEA)
and inactive duty for training (INACDUTRA) through 1996.
Initially, in a December 2006 rating decision, service
connection for dysthymic disorder was granted, and a 30
percent disability rating was assigned. The Veteran was
properly notified of this decision in a January 2007 letter
from the RO.
In March 2007, the Veteran filed a claim seeking entitlement
to a disability rating in excess of 30 percent for his
service-connected dysthymic disorder as well as service
connection for a right knee disability and a cardiovascular
disorder. In an October 2007 rating decision, the Department
of Veterans Affairs (VA) Regional Office (RO) in Milwaukee,
Wisconsin denied these issues. The Veteran perfected a
timely appeal of these denials to the Board of Veterans'
Appeals (Board).
The Veteran's increased rating claim is addressed in the
REMAND portion of the decision below and is being REMANDED to
the RO via the Appeals Management Center (AMC) in Washington,
DC.
FINDINGS OF FACT
1. The Veteran does not currently have a right knee
disability.
2. A cardiovascular disorder was not shown in service or
until many years later and is not associated in any way with
the Veteran's active duty.
CONCLUSIONS OF LAW
1. A right knee disability was not incurred in or aggravated
by military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. § 3.303 (2009).
2. A cardiovascular disorder was not incurred in or
aggravated by military service. 38 U.S.C.A. §§ 1110, 1131
(West 2002); 38 C.F.R. § 3.303 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. The Veterans Claims Assistance Act of 2000 (VCAA)
The Board has given consideration to the VCAA. The VCAA
includes an enhanced duty on the part of VA to notify a
claimant as to the information and evidence necessary to
substantiate claims for VA benefits. The VCAA also redefines
the obligations of VA with respect to its statutory duty to
assist claimants in the development of their claims. See
38 U.S.C.A. §§ 5103, 5103A (West 2002).
A. Duty To Notify
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; and (3) that the claimant is
expected to provide. VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
In March 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The Court in Dingess held that the VCAA
notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a "service connection"
claim. As previously defined by the courts, those five
elements include: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date of the disability. Upon receipt of an
application for "service connection," therefore, VA is
required to review the information and the evidence presented
with the claim and to provide the claimant with notice of
what information and evidence not previously provided, if
any, will assist in substantiating or is necessary to
substantiate the elements of the claim as reasonably
contemplated by the application. This includes notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
In the present case, VA issued a VCAA notice letter to the
Veteran in April 2007. This letter informed the Veteran of
what evidence was required to substantiate his service
connection claims and of his and VA's respective duties for
obtaining evidence. The document also informed the Veteran
as to the law pertaining to the assignment of a disability
rating and effective date as the Court required in Dingess.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court
held that compliance with 38 U.S.C.A. § 5103 required that
VCAA notice be provided prior to an initial unfavorable AOJ
decision. Because VCAA notice in this case was accomplished
prior to the initial AOJ adjudication that denied the claim,
the timing of the notice complies with the express
requirements of the law as found by the Court in Pelegrini.
In short, the record indicates that the Veteran received
appropriate notice pursuant to the VCAA.
B. Duty To Assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2009).
The Board finds that reasonable efforts have been made to
assist the Veteran in obtaining evidence necessary to
substantiate his claim, and that there is no reasonable
possibility that further assistance would aid in
substantiating it. In particular, the VA has obtained the
Veteran's service treatment records, VA outpatient medical
records, private medical records, and provided him with a VA
examination for his heart disability claim.
The Board acknowledges that the RO has made a formal finding
of unavailability for portions of the Veteran's treatment the
Milwaukee VA Medical Center prior to September 2007. The
record indicates that the RO has made multiple attempts to
obtain these records. Under these circumstances the Board
finds that any additional attempts to obtain these records
would be futile. See Hayre v. West, 188 F.3d 1327 (Fed. Cir.
1999). Since the record indicates that the Veteran has been
informed of the missing records, there will be no prejudice
to him in proceeding to a decision on his claims. The Board
has carefully reviewed the Veteran's statements and concludes
that he has not identified further evidence not already of
record. The Board has also reviewed the medical records for
references to additional treatment reports not of record, but
has found nothing to suggest that there is any outstanding
evidence with respect to the Veteran's claim.
Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in
initial service connection claims, the VA must provide a VA
medical examination when there is (1) competent evidence of a
current disability or persistent or recurrent symptoms of a
disability; (2) evidence establishing that an event, injury,
or disease occurred in service; (3) an indication that the
disability or persistent or recurrent symptoms of a
disability may be associated with the veteran's service; and
(4) insufficient competent medical evidence on file for VA to
make a decision on the claim.
With respect to the Veteran's right knee claim, as will be
discussed below, the Veteran has not been diagnosed with a
right knee disability. Further, the record does not indicate
that he has had persistent recurrent symptoms of a
disability. While the Board notes that the Veteran was found
to have knee arthralgia (joint pain) in October 2008, the
record does not indicate which knee was bothering him or
otherwise document persistent recurrent symptoms of a
disability. Also, symptoms, such as pain, without a
diagnosed or identifiable underlying malady or condition, do
not in and of itself constitute a disability for which
service connection may be granted. See Sanchez-Benitez v.
West, 13 Vet. App. 282 (1999). Accordingly, McLendon element
(1) has not been met.
In addition, the Board notes that the record is missing
critical evidence of an event, injury, or disease that
occurred in service, McLendon element (2). The Veteran has
indicated that he injured his knee when he was hit by a truck
during a bicycle ride in June 1975. As discussed below,
however, the service treatment records are negative for any
indication of a right knee injury. In fact, the Veteran's
separation examination, which was conducted in October 1975,
found no abnormalities with respect to the Veteran's lower
extremities and the Veteran did not identify any knee
problems in his self-report of medical history.
As McLendon elements (1) and (2) have not been met, a VA
examination is not required for the Veteran's right knee
claim. The circumstances presented in this request are
distinguished from those set forth in Charles v. Principi, 16
Vet. App. 370 (2002), in which VA was required to obtain a
nexus opinion when there was acoustic trauma in service and
competent evidence of a current disability. Here, there is
absolutely no evidence of a current disability. See 38
U.S.C.A. § 5107(a) (West 2002).
With respect to the Veteran's cardiovascular claim, as
discussed in detail below, the Veteran was provided with a VA
examination in February 2008. The report of this examination
reflects that the examiner reviewed the Veteran's past
medical history, recorded his current complaints, conducted
an appropriate physical examination and rendered appropriate
diagnoses and opinions consistent with the remainder of the
evidence of record. Supporting rationale for the opinion was
provided in the report. See Barr v. Nicholson, 21 Vet. App.
303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295
(2008). The Board therefore concludes that the examination
is adequate for rating purposes. See 38 C.F.R. § 4.2
(2009). The Veteran and his representative have not
contended otherwise.
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and that no further development is required to comply
with the duty to assist the Veteran in developing the facts
pertinent to his claim. Essentially, all available evidence
that could substantiate the claim has been obtained. There
is no indication in the file that there are additional
relevant records that have not yet been obtained.
The Board additionally observes that all appropriate due
process concerns have been satisfied. See 38 C.F.R. § 3.103
(2009). The Veteran has been accorded the opportunity to
present evidence and argument in support of his claims. He
has declined to exercise his option of a personal hearing.
II. Analysis
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. See 38
U.S.C.A. § 7104(a) (West 2002). When there is an approximate
balance of evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102
(2009).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
United States Court of Appeals for Veterans Claims (the
Court) stated that "a veteran need only demonstrate that
there is an 'approximate balance of positive and negative
evidence' in order to prevail." To deny a claim on its
merits, the preponderance of the evidence must be against the
claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
In general, service connection may be granted for disability
or injury incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R.
§ 3.303 (2009). Service connection may also be granted for
any injury or disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease or injury was incurred in service. See 38
C.F.R. § 3.303(d) (2009).
In order to establish service connection for the claimed
disorder, there must be (1) competent and credible evidence
of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) competent and
credible evidence of a nexus between the claimed in-service
disease or injury and the current disability. See Hickson v.
West, 12 Vet. App. 247, 253 (1999); see also Davidson v.
Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009), Jandreau
v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v.
Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination
as to whether these requirements are met is based on an
analysis of all the evidence of record and the evaluation of
its credibility and probative value. See Baldwin v. West, 13
Vet. App. 1, 8 (1999).
Service connection presupposes a current diagnosis of the
claimed disability. See Brammer v. Derwinski, 3 Vet. App.
223, 225 (1992). The Court has held that the "current
disability" requirement is satisfied "when a claimant has a
disability at the time a claim for VA disability compensation
is filed or during the pendency of that claim . . . even
though the disability resolves prior to the Secretary's
adjudication of the claim." See McClain v. Nicholson,
21 Vet. App. 319 (2007).
A. Right Knee
With respect to the first Hickson element, a current
disability, the evidence of record does not indicate that the
Veteran has a right knee disability. While the Board is
aware that the Veteran has been diagnosed with knee
arthralgia, pain alone does not constitute a disability for
which service connection may be granted. See Sanchez-
Benitez, supra. Moreover, the medical records documenting
arthralgia do not specify whether it pertains to the
Veteran's right or left knee. [Service connection for a left
knee disability was granted in December 2006.]
To the extent that the Veteran himself believes that he has a
right knee disability, it is now well established that lay
persons without medical training, such as the Veteran, are
not competent to comment on medical matters such as
diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 491, 494-
95 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent
medical evidence means evidence provided by a person who is
qualified through education, training, or experience to offer
medical diagnoses, statements, or opinions]. The statements
offered by the Veteran are not competent medical evidence and
do not serve to establish the existence of a current
disability.
In the absence of any diagnosed disability, service
connection may not be granted. See Degmetich v. Brown, 104
F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353
(Fed. Cir. 1998) [service connection cannot be granted if the
claimed disability does not exist]. Accordingly, Hickson
element (1) has not been met for the Veteran's right knee
claim, and it fails on this basis alone.
For the sake of completeness, the Board will briefly address
the remaining two Hickson elements. See Luallen v. Brown, 8
Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet.
App. 91, 92 (1995) [the Board has the fundamental authority
to decide a claim in the alternative].
With respect to the second Hickson element, the Veteran has
alleged that he was hit by a truck while riding his bicycle
in June 1975. See the September 2008 substantive appeal.
Notwithstanding the Veteran's statement, there is no evidence
of a right knee disease or injury while in service. The
service treatment records reveal that the Veteran did not
report any right knee problems during his military career.
His October 1975 separation examination, which would have
occurred four months after his alleged accident, indicates
that the Veteran's knees were normal upon examination and
that the Veteran did not identify any knee problems in his
self-report of medical history. In this case the Board finds
that the Veteran's service treatment records are more
persuasive than his recent assertions of an in-service right
knee injury made in connection with a claim for monetary
benefits from the government. Such records are more
reliable, in the Board's view, than the Veteran's unsupported
assertion of events now over three decades past. See
Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot
ignore a veteran's testimony simply because the veteran is an
interested party; personal interest may, however, affect the
credibility of the evidence]; see also Curry v. Brown, 7 Vet.
App. 59, 68 (1994) [contemporaneous evidence has greater
probative value than history as reported by the veteran].
After a review of all the records, the Board finds that the
evidence does not indicate that the Veteran had any right
knee injury or disease during service. Hickson element (2)
has not been satisfied, and the Veteran's claim fails on this
basis as well.
With respect to element (3), in the absence of a current
diagnosis of a right knee disability, it follows that a
medical nexus is also lacking. Such is the case here.
A review of the record reveals that the Veteran has not
submitted medical evidence attempting to link an in-service
injury or disease to a diagnosed right knee disability.
Accordingly, Hickson element (3), medical nexus, has not been
satisfied.
In sum, for the reasons and bases expressed above, the Board
finds that the preponderance of the evidence is against the
Veteran's claim of entitlement to service connection for a
right knee disability, as Hickson elements (1), (2), and (3)
have not been met. The benefit sought on appeal is
accordingly denied.
B. A Cardiovascular Disorder
With respect to Hickson element (1), the Veteran has been
diagnosed with coronary artery disease and ischemic heart
disease. See, e.g., reports of February 2008 VA examination
and of July 2009 VA outpatient treatment session.
With respect to Hickson element (2), the Veteran was noted to
have a systolic heart murmur on his separation examination.
The service treatment records also document that the Veteran
complained of chest pains in October 1975. Hickson element
(2) has therefore been met.
With respect to Hickson element (3), medical nexus, the Board
notes that the February 2008 VA examiner did not find a
relationship between the Veteran's coronary artery disease
and his military service. The examiner specifically stated:
"There is no evidence that this condition is related to the
chest pain or the bronchospasm which were noted in service.
The Veteran has numerous risk factors for coronary artery
disease . . . [which include his] age, sex, history of
tobacco use, family history of coronary artery disease,
hyperlipidemia, and hypertension."
Significantly, the Veteran has not submitted, and the record
does not contain, a competent medical nexus opinion to the
contrary. See 38 U.S.C.A. § 5107(a) (West 2002) [it is a
claimant's responsibility to support a claim for VA
benefits].
To the extent that the Veteran himself contends that a
medical relationship exists between his heart disability and
service, any such statements offered in support of the
Veteran's claim do not constitute competent medical evidence
and cannot be accepted by the Board. See Espiritu, supra
To the extent that the Veteran contends that he has had heart
problems continually since service, the Board is of course
aware of the provisions of 38 C.F.R. § 3.303(b), relating to
chronicity and continuity of symptomatology. However, the
Board discounts any such claimed continuity in light of the
absence of medical records regarding a heart disability until
the Veteran had an acute myocardial infarction in December
2004, nearly thirty years following service. See Voerth
v. West, 13 Vet. App. 117, 120-1 (1999) [there must be
medical evidence on file demonstrating a relationship between
the Veteran's current disability and the claimed continuous
symptomatology, unless such a relationship is one as to which
a lay person's observation is competent]. As a result,
Hickson element (3) has not been satisfied and the Veteran's
claim fails on this basis.
In sum, for the reasons and bases expressed above, the Board
finds that the preponderance of the evidence is against the
Veteran's claim of entitlement to service connection for a
heart disability, as Hickson element (3) has not been met.
The benefit sought on appeal is accordingly denied.
ORDER
Entitlement to service connection for a right knee disability
is denied.
Entitlement to service connection for a cardiovascular
disorder is denied.
REMAND
After having carefully considered the matter, and for reasons
expressed immediately below, the Board believes that the
Veteran's increased rating claim must be remanded for further
evidentiary development. In particular, the evidence of
record indicates that the Veteran was provided with a VA
psychiatric examination in November 2006 in connection with
his then pending claim for service connection for depression.
As previously noted herein, service connection for a
dysthymic disorder was granted in December 2006, and the
Veteran filed a new claim for an increased rating in March
2007. He has not been provided with a VA examination since
November 2006, and the record does not contain sufficient
medical evidence for VA to make a decision on the Veteran's
claim.
Indeed, in the substantive appeal which was received at the
RO in September 2008, the Veteran appeared to indicate that
his psychiatric symptoms were worsening since that last VA
examination in November 2006. VA's General Counsel has
indicated that, when a claimant asserts that the severity of
a disability has increased since the most recent rating
examination, an additional examination is appropriate.
VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober,
10 Vet. App. 400, 402-403 (1997); Caffrey v. Brown, 6 Vet.
App. 377, 381 (1994). In light of the Veteran's essential
assertions of increased psychiatric symptomatology since the
last VA examination of his dysthymic disorder in November
2006, as well as the insufficient information in the
subsequent outpatient treatment records, the Board agrees
that a remand for a current VA examination is necessary. See
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009); &
Allday v. Brown, 7 Vet. App. 517, 526 (1995) [where record
does not adequately reveal current state of claimant's
disability, fulfillment of duty to assist requires
contemporaneous medical examination, particularly if there is
no additional medical evidence which adequately addresses the
level of impairment since previous examination].
In addition, ongoing medical records should also be obtained.
38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v.
Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in
constructive possession of the agency and must be obtained if
pertinent).
Accordingly, the case is REMANDED for the following action:
1. Obtain copies of records of
psychiatric treatment that the Veteran may
have received at the VA Medical Center in
Milwaukee, Wisconsin since August 2009.
Associate all such available records with
the claims folder.
2. Thereafter, schedule the Veteran for a
VA examination to determine the nature and
extent of his service-connected dysthymic
disorder. The claims folder must be made
available to and be reviewed by the
examiner in conjunction with the
examination. Any testing deemed necessary
should be performed. All pertinent
psychiatric pathology should be noted in
the examination report. As part of the
evaluation, the examiner is requested to
assign a Global Assessment of Functioning
score. The examiner should also address
the impact of the Veteran's service-
connected dysthymic disorder on his
ability to work. A complete rationale for
all opinions expressed must be provided.
3. Then, readjudicate the claim for a
rating in excess of 30 percent for a
dysthymic disorder. If the benefit sought
on appeal remains denied, the Veteran and
his representative should be provided a
supplemental statement of the case and
given an appropriate opportunity to
respond. Thereafter, the case should be
returned to the Board for further
consideration, if otherwise in order.
No action is required of the Veteran until he is notified by
the RO; however, the Veteran is advised that failure to
report for any scheduled examination may result in the denial
of his claims. 38 C.F.R. § 3.655 (2009). He has the right
to submit additional evidence and argument on the matters
that the Board has remanded. Kutscherousky v. West, 12 Vet.
App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
THERESA M. CATINO
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs